ELLA MAE WELLS, ET AL., PETITIONERS V. UNITED STATES OF AMERICA
No. 88-653
In the Supreme Court of the United States
October Term, 1988
On Petition for a writ of certiorari to the United States Court of
Appeals for the District of Columbia Circuit
Brief for the United States in Opposition
TABLE OF CONTENTS
Question Presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-16a) is reported
at 851 F.2d 1417. The opinion of the district court (Pet. App.
19a-41a) is reported at 655 F. Supp. 715.
JURISDICTION
The judgment of the court of appeals was entered on July 19, 1988
(Pet. App. 17a-18a). The petition for a writ of certiorari was filed
on October 17, 1988. The jurisdiction of this Court is invoked under
28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether the discretionary function exception to the Federal Tort
Claims Act, 28 U.S.C. 2680(a), bars petitioners' claim that the Deputy
Administrator of the Environmental Protection Agency was negligent in
his decision to conduct further study on acceptable levels of lead
pollution before ordering remedial action against polluters.
STATEMENT
1. Petitioners are 571 individuals who reside in Dallas, Texas near
three lead manufacturing companies. They brought this Federal Tort
Claims Act (FTCA) suit seeking over $200 million in damages for
personal injuries and property damage allegedly suffered as a result
of negligent acts and omissions by the Environmental Protection Agency
(EPA) in monitoring, evaluating, and regulating lead pollution hazards
in their neighborhood. Before the district court (Pet. App. 25a-26a)
and the court of appeals (id. at 4a), petitioners focused their
allegations upon the allegedly negligent decision of Dr. John
Hernandez, the Deputy Administrator of the EPA, to conduct further
study on acceptable levels of lead pollution before ordering, or
accepting a proposal for, a cleanup by the lead manufacturers. /1/
2. The district court granted the government's motion to dismiss,
holding that the EPA regulatory activity challenged as wrongful by
petitioners fell within the discretionary function exception to the
FTCA, 28 U.S.C. 2680(a). After surveying the statutes that confer
authority upon the EPA, the district court concluded (Pet. App. 36a)
that the EPA was granted "wide judgmental latitude * * * in its
determination of what, if any, action need be taken in response to a
particular environmental concern." Since Congress has "left EPA to
decide the manner and the extent to which it will protect individuals
from exposure to hazardous wastes," the court ruled (id. at 38a),
EPA's regulatory activity in managing the lead pollution problem in
Dallas could not give rise to liability under the FTCA.
The district court rejected (Pet. App. 32a-33a) petitioners'
contention that the EPA's conduct did not implicate policy
considerations but rather represented negligent "objective" scientific
determinations. "On the contrary," the district court stated (id. at
33a), "the acts and omissions charged here comprised the formulation
of regulatory policy -- whether and to what extent EPA should enforce
environmental and health standards." Relying upon this Court's
decision in United States v. S.A. Empresa de Viacao Aerea Rio
Grandense (Varig Airlines), 467 U.S. 797 (1984), the district court
held that the EPA was not liable under the FTCA because "'(w)hen an
agency determines the extent to which it will supervise the safety
procedures of private individuals, it is exercising discretionary
regulatory authority of the most basic kind.'" Pet. App. 33a (quoting
467 U.S. at 819-820).
3. The court of appeals affirmed. The court rejected (Pet. App.
12a-13a) petitioners' contention that the EPA decision was based only
on scientific considerations and thus did not fall within the
discretionary function exception. The court noted that the House
hearings upon which petitioners relied themselves demonstrated that
various economic, social, and political factors were expressly taken
into account by Dr. Hernandez. "In making the decision to further
study the problem," the court noted (id. at 4a), Dr. Hernandez was
concerned that by acting precipitously "he would implicitly be
establishing a precedent that might be too stringent to be applied
generally * * *." The court accordingly held (id. at 13a) that "(t)he
discretionary function exception precludes liability in this case
because Dr. Hernandez was exercising permissible discretion based on
policy considerations in deciding to order further study."
ARGUMENT
1. The statutes authorizing regulatory and enforcement activities
by the EPA grant broad judgmental discretion to the agency in
determining how to respond to particular environmental problems.
Under the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, 42 U.S.C. (& Supp. IV) 9601 et seq., the
government is given authority to "select" and "balance" a wide variety
of measures and to undertake such action as is "deemed necessary" in
response to particular environmental contingencies. See, e.g., 42
U.S.C. (& Supp. IV) 9604, 9606(a). The Resource Conservation and
Recovery Act of 1976, 42 U.S.C. 6901 et seq., also provides the EPA
broad authority to perform certain regulatory activities affecting
hazardous waste management and disposal. See generally Cisco v.
United States, 768 F.2d 788, 789 (7th Cir. 1985).
The court of appeals was thus plainly correct in its conclusion
that the EPA's decision to conduct further studies before taking
specific action to correct high lead concentrations in petitioner's
neighborhood was protected from suit by the discretionary function
exception. Determining how to respond to a particular environmental
hazard necessarily entails broad discretion in the application of
various policy considerations to individual circumstances. The
discretionary function exception was expressly designed to insulate
from tort suits such "administrative decisions grounded in social,
economic, and political policy" (Varig Airlines, 467 U.S. at 814).
Petitioners do not claim that the EPA violated any statutes or
regulations in deciding to conduct further studies before ordering a
cleanup of lead pollution in petitioners' neighborhood. Compare
Berkovitz v. United States, No. 87-498 (June 13, 1988). Nor have
petitioners contested the fact that the governing statutes allow the
Deputy Administrator of EPA to exercise policy choice in making
decisions of this nature. Instead, petitioners contend that the
governmental decision challenged here in fact turned solely upon
objective scientific factors and was not influenced by any of the
social, economic, or political policy considerations that animate the
discretionary function exception. That argument is plainly untenable.
Every court of appeals has held that, in the absence of any claim
of a violation of statutes or regulations, the decision of a
regulatory agency as to how, when, and to what extent to respond to a
perceived hazard is protected from suit by the discretionary function
exception. /2/ Such decisions are inherently discretionary because
they necessarily implicate a wide assortment of policy considerations,
even if the range of available discretion is narrowed by an evaluation
of objective scientific factors.
Because of the broad discretion afforded to the EPA by Congress in
this context, two courts of appeals in addition to the court below
have held that the discretionary function exception applies to bar
actions based upon the EPA's alleged negligence in responding to
particular environmental hazards. In Bacon v. United States, 810 F.2d
827, 829-830 (8th Cir. 1987), the Eighth Circuit considered a tort
action premised on the EPA's failure to warn the plaintiffs of the
hazards of dioxin contamination in the area. The court held that
decisions concerning the adoption of environmental safety policy fell
within the definition of a discretionary function. Likewise, in Cisco
v. United States, 768 F.2d 788 (7th Cir. 1985), the Seventh Circuit
affirmed the dismissal on discretionary function grounds of an action
based on the EPA's failure to warn plaintiffs about dioxin
contamination or to remove the contaminated soil. The same result
follows in the present case. While scientific information contributes
to an informed policy choice, the determination as to the level of
pollutant contamination that justifies extraordinary remedies with
significant social and economic ramifications for affected communities
and businesses plainly reflects "the discretion of the executive or
the administrator to act according to one's judgment of the best
course." Dalehite v. United States, 346 U.S. 15, 34 (1953).
2. The House hearings, upon which petitioners themselves rely,
directly contradict their argument that only non-policy, scientific
factors were taken into account by the EPA in determining to conduct
further study before establishing a regulatory standard. Petitioners
premise their argument upon two passages of testimony from the
hearings. See Pet. 2, 8. In the first exchange, Dr. Hernandez
testified generally that risk level and exposure route data
constituted scientific evidence that was used in making his decision
to conduct further study. Hearings 67 (Pet. App. 47a-48a). But, as
the court of appeals noted (Pet. App. 15a n.5), Dr. Hernandez "does
not state that he did not consider other factors besides the two he
mentioned" and "Dr. Hernandez's further comments show that he
considered many nonscientific factors."
The second exchange involved testimony by subordinates of Dr.
Hernandez. Representative Synder asked whether they had "any reason
to believe that any actions on (Dr. Hernandez's) part were based upon
anything other than his scientific judgment." Hearings 339 (Pet. App.
58a-59a). They each replied that they did not (ibid.). Petitioners
cite this testimony as conclusive evidence to support their argument
that only ordinary scientific decision-making had occurred in this
case. See Pet. 8. But, again, as the court of appeals explained
(Pet. App. 15a n.5), petitioners have twisted this testimony out of
context. Representative Synder was actually questioning these
subordinates to determine whether they knew of any "unholy alliance
between Dr. Hernandez and any of the three (lead manufacturing)
companies" that could have influenced his decision. Hearings 339
(Pet. App. 58a). In other words, the subordinates merely testified
that they had no reason to believe that Dr. Hernandez's decision
reflected corrupt influences as opposed to unbiased scientific
judgment. The testimony is not fairly understood to mean that Dr.
Hernandez reached a decision based solely upon scientific factors to
the exclusion of policy considerations.
The court of appeals listed (Pet. App. 13a-14a) numerous excerpts
from the House hearings that detail the various policy factors, other
than purely scientific and statistical evidence, that influenced Dr.
Hernandez's decision. He was concerned as to whether the level of
lead found in the soil in Dallas and proposed as the basis for action
in that community would be an appropriate precedent for taking similar
actions in numerous other areas of the country that had higher than
average lead levels in the soil. Hearings 317 (Pet. App. 49a). He
had to balance the possibility that the immediate clean-up offer made
by one of the lead smelters as a basis for a settlement of its
obligations would prove inadequate in light of further studies that
might show more extensive problems in other parts of the Dallas area.
Hearings 66-67 (Pet. App. 45a-48a). His decision to conduct further
study also reflected concerns of possible political criticism if the
standard proposed were adopted hastily and failed to address the
larger problem (ibid.). Finally, there was testimony that budgetary
constraints also counseled against precipitous agency action.
Hearings 320 (Pet. App. 52a-54a). Thus, petitioners' contention that
policy considerations played no part in the decision in question here
was properly rejected by both lower courts. /3/
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
CHARLES FRIED
Solicitor General
JOHN R. BOLTON
Assistant Attorney General
ROBERT S. GREENSPAN
GREGORY C. SISK
Attorneys
DECEMBER 1988
/1/ To amplify and substantiate their allegations, petitioners
relied entirely upon testimony at hearings before a House of
Representatives subcommittee. See Hazardous Waste Contamination of
Water Resources (EPA Implementation of the Superfund Program and Lead
Pollution Problems in Dallas, TX): Hearings Before the Subcomm. on
Investigations and Oversight of the House Comm. on Public Works and
Transportation, 98th Cong., 1st Sess. (1983) (hereinafter Hearings).
/2/ See, e.g., In re Consolidated United States Atmospheric Testing
Litigation, 820 F.2d 982 (9th Cir. 1987), cert. denied, No. 87-953
(Feb. 29, 1988); Barnson v. United States, 816 F.2d 549 (10th Cir.
1987), cert. denied, No. 87-104 (Oct. 13, 1987); Merklin v. United
States, 788 F.2d 172 (3d Cir. 1986); Cunningham v. United States, 786
F.2d 1445 (9th Cir. 1986); Begay v. United States, 768 F.2d 1059 (9th
Cir. 1985); Baxley v. United States, 767 F.2d 1095 (4th Cir. 1985);
Shuman v. United States, 765 F.2d 283 (1st Cir. 1985); Russell v.
United States, 763 F.2d 786 (10th Cir. 1985); Hylin v. United States,
755 F.2d 551 (7th Cir. 1985); Feyers v. United States, 749 F.2d 1222
(6th Cir. 1984), cert. denied, 471 U.S. 1125 (1985); General Pub.
Utilities Corp. v. United States, 745 F.2d 239 (3d Cir. 1984), cert.
denied, 469 U.S. 1228 (1985).
/3/ Petitioners argue (Pet. 10) that, by considering the House
hearings testimony as a whole, "the court below acknowledgely did not
view Petitioner(s)' evidence in the light most favorable to them, and
explicitly decided that the Government's evidence on the factors
underlying Dr. Hernandez's decision was somehow more valid than
Petitioners' evidence." Petitioners miss the point. Petitioners
themselves chose to rely upon the House hearings as a way of
demonstrating the counterintuitive proposition that policy
considerations played no part in Dr. Hernandez's discretionary
decision. The court of appeals simply did not allow petitioners to
pick and choose which aspects of that hearings testimony they wished
to emphasize or neglect. Petitioners are certainly correct in
contending that, upon a motion to dismiss, a court must view factual
allegations made in a complaint in the light most favorable to the
plaintiffs. But petitioners were asking the courts below to reach
absurd conclusions that could only be justified by permitting
petitioners to twist quotations out of context in an attempt to confer
meaning and significance that the testimony as a whole precluded.